NGCAMU,
A.J:
This is a review application in which the applicant seeks the review
and setting aside of an arbitration award of the first respondent.
The second respondent was dismissed by the applicant after having
been found guilty of gross neglect of duty during the disciplinary
hearing. The respondent referred the dispute for arbitration. After
the conclusion of the arbitration hearing the arbitrator ordered
the
reinstatement of the second respondent. It is this award that the
applicant seeks to review.

The second respondent (whom I
shall refer to as "the employee") was employed by the
applicant as a train driver. On 15 October
1999 an accident occurred
involving a train driven by the employee. Four people died in the
said accident and nineteen were injured.
The respondent was charged
with the following offence:

"Gross neglect of duty in
that on 15 October 1999, at approximately 15h56, you drove train
number 9442 recklessly and negligently,
without due regard to the
property of Metrorail and the safety of its passengers, in that: you
passed signal NDC806T at danger on
the up-slow line between Crown and
New Canada stations. You exceeded section 1 in speed and could not
control the said train to stop
within a safe distance. As a result of
this serious neglect of duty you caused a collision which led to
damage to property, loss
of life and injuries."

A disciplinary hearing was held.
The respondent was found guilty and he was dismissed. The respondent
referred this matter to the
Transnet Bargaining Council. The
arbitrator came to the following conclusion:

"I do not believe that the
company proved gross neglect of duty on the part of the grievant. His
dismissal on 11 January 2000
for this reason was accordingly unfair."

It was common cause that shortly
before the accident the train was travelling at an excessive speed,
and that the employee passed
the signal "danger". The award
has been attacked on various grounds. Second and third respondents
oppose this application.

Mr Kennedy submitted, on behalf
of the applicant, that the applicant is relying on misconduct and
particularity on the part of the
arbitrator. The applicant relies on
the technical data obtained from the "black boxes"
regarding the speed and application
of brakes made by the employee.
It does not appear from the arbitrator's notes that this scientific
evidence was common cause. The
applicant did not lead evidence of a
scientific nature. The data analysis was handed to the commissioner.
There was no agreement
as to the status of this document. There is no
evidence that the employee has admitted the contents of this report.
In the absence
of the admission of the report by the employee the
applicant had to lead evidence on the data analysis. The applicant
failed to do
this. The report was accordingly not proved before the
commissioner.

In the circumstances I am of the
view that the applicant cannot rely on the data analysis which has
not been proved. The court is
not in possession of the complete
record in order to assess the evidence given by the witnesses. It is
not open to the applicant
to attack the commissioner on his findings
on facts, in the absence of a complete transcript record. The
applicant is required to
file the record of the proceedings in terms
of rule 7A(6) of the rules of this court. The court is entitled to
dismiss the review
in the absence of the record.

"In the
absence of the transcribed record of the proceedings before the first
respondent the court a
quo
was in no position to adjudicate properly on the application before
it, and ought accordingly to have dismissed it."

The applicant only transcribed
the written notes of the arbitrator, which in some instances is
abbreviated. This does not give a
complete picture of the evidence
that was given.

I am of the view that the court
is entitled to dismiss the application on this point alone.

The parties made submissions on
the evidence as recorded in the arbitrator's handwritten notes. There
was no application for amendment
of the grounds of review, to allege
that the arbitrator committed a misconduct or irregularity in not
keeping the record of the proceedings.
If there was such an
application I would have approached this matter in a different
manner. In the event that I am not entitled to
dismiss this case at
this point, I then venture to proceed and consider other grounds
raised by the applicant.

The employee testified that he
dozed off. The arbitrator accepted the employee's version. The
applicant's contention is that this
is not possible because the train
has a "dead man's handle", which has to be depressed all
the time to keep the train in
motion. The applicant contends that if
the train driver falls asleep the "dead man's handle" will
pop up and stop the train.

The applicant also relies on the
fact that the employee told a colleague, Mr Neethling, and a
physician, that he did not see the red
light because he had been
blinded by the sun. The employee explained that he was confused and
shocked, and could have said that he
was blinded by the sun. He
however could not recall what he had said. The employee further
testified that he did not want to incriminate
himself. The arbitrator
considered this and found that this cannot be held against the
employee.

The employee further testified
that the spring of the "dead man's handle", for the train
in question, was loose, and that
you could engage the "dead
man's handle" while asleep. There was no evidence to rebut this
from the applicant.

Mr van Dyk admitted that the
"dead man's handle" loses tension with age. His submission
goes to the heart of the applicant's
contention, that the "dead
man's handle" requires pressure all the time. It confirms the
evidence of Dr Bentley, when she
testified that it was possible to
perform any automatic actions while asleep.

The
arbitrator applied his mind to the operation of the "dead man's
handle" and concluded that it was possible to press
down the
handle in a state of sleep. The arbitrator may have made a mistake on
the findings of fact on this, but this does not make
the award
reviewable. This may be unsatisfactory to the applicant. Not all the
awards will be satisfactory. This was confirmed in
Shoprite
Checkers (Pty) Ltd v Ramdaw NO and Others(2001) 9 BLLR 1011 (LAC) at 1041, para.101:

"In my view it is within
the contemplation of the dispute resolution system prescribed by the
Act that there will be arbitration
awards which are unsatisfactory in
many respects, but nevertheless must be allowed to stand because they
are not so unsatisfactory
as to fall foul of the grounds of review.
Without such contemplation the Act's objective of the expeditious
resolution of disputes
would have no hope of being achieved. In my
view the first respondent's award cannot be said to be unjustified
when regard is had
to all the circumstances of this case and the
material that was before him."

This is a case where the factual
findings of the arbitrator cannot be disturbed. In my view in the
absence of evidence rebutting that
of the employee, regarding the
handle, the arbitrator's findings cannot be attacked. It was upon the
applicant to bring evidence
in rebuttal. The applicant attacks the
arbitrator for finding that the applicant had failed to prove gross
negligence or any neglect
of duty on the part of the employee after
finding that the witnesses for the applicant were excellent.

It is significant to point out
that the applicant does not submit that it proved its case against
the employee. The applicant submitted
that Dr Bentley conceded that
she was unable to say whether the operation of the "dead man's
handle" could be performed
by a driver in his sleep. Dr
Bentley's evidence was that it was very likely that the employee
would fall asleep, when driving, in
the light of the number of hours
the employee was working. It was not disputed that the employee
worked a number of hours without
sleep. It is therefore logical that
such a driver would fall asleep, and one does not need an expert to
prove this.

The applicant submitted that Dr
Bentley's evidence should not have been accepted because she did not
give evidence to the effect that
the employee fell asleep. To my mind
this submission misses the point. The onus was on the applicant to
prove that the employee committed
gross neglect of duty in that he
drove recklessly and negligently. The employee raised a defence that
he dozed off, and the spring
of the handle was loose. The applicant
has failed to rebut this evidence. The applicant had to prove that
the employee's version
was false.

The arbitrator's findings can be
justified on the basis that the applicant failed to prove its case on
the basis that the employee
was exhausted as a result of the number
of hours worked, which was not disputed.

I am not satisfied, on the
arbitrator's notes, that applicant made any attempt to prove gross
neglect of duty, which was the gist
of the charge. It was not even
put to the employee under cross-examination that he neglected his
duties. None of the applicant's
witnesses also suggested this under
oath.

The applicant
submitted that the arbitrator committed an irregularity in not
holding an inspection in
loco.
It is difficult to accept the applicant's version on this point. The
arbitrator has filed an affidavit explaining that a suggestion
of an
inspection in
loco
was made before the opening statement. There is no evidence before me
to indicate that the request was made later during the proceedings.

The
applicant's problem on this point is caused by the fact that there is
no record. I have no reason to reject the arbitrator's explanation,
that he did not refuse to permit an inspection in
loco.
I therefore cannot find any irregularity. There was no proof of a
refusal to permit the inspection.

The
arbitrator further explained that an inspection in
loco
would have had no bearing on his findings. I cannot criticise the
arbitrator for this. He exercised his discretion based on evidence
before him. The applicant cannot criticise the arbitrator for not
allowing an inspection in
loco
when it cannot be proved that a request was made and refused. It is
not sufficient to make a suggestion at the beginning of the
arbitration
and hope that the arbitrator will exercise his
discretion. If the applicant felt that an inspection in
loco
was vital, a request should have been made.

The applicant
has failed to show that it has not been afforded a fair trial as a
result of the refusal by the arbitrator to permit
an inspection in
loco.
(See Gold
Fields Investments Ltd v City Council of Johannesburg and Another1938 TPD 551).

Once it is
accepted that the spring of the "dead man's handle" wears
down with age, and that different locomotives have
different
tensions, it would not have assisted the arbitrator to go for an
inspection in
loco
of any handle other than that of the train driven by the employee.
There is no evidence that the handle to be inspected was that
of the
train that was involved in the collision.

In the light of this I cannot
find any reason for interfering with the arbitrator's award.

I have indicated that I do not
have the transcript record of the arbitration proceedings. I am
unable to assess fully the evidence
that was presented to the
arbitrator to be able to make an informed decision. This is
compounded by the fact that there is a dispute
of fact raised by the
parties in their affidavits.

In the
circumstances, where there is a dispute of fact, I have to accept the
respondent's version. (See Plascon-Evans
Paints v Van Riebeeck Paints[1984] ZASCA 51; 1984 (3) SA 623 (A); County
Fair v CCMA and Others(1998) BLLR 577 (LC), at para.7D; and Mondicraft
(Pty) Ltd v PPWAWU and Others(1999) 10 BLLR 1057 (LC), at 1059B-D).

On the evidence as recorded in
the handwritten notes, and the arbitrator's award, I am not persuaded
that the arbitrator committed
any gross misconduct or irregularity in
the proceedings. It therefore follows that the award in this matter
cannot be disturbed.